Conford, Gaulkin and Kilkenny. The opinion of the court was delivered by Kilkenny, J.A.D.
[74 NJSuper Page 192] Plaintiff insurance company brought a declaratory judgment proceeding in the Superior Court, Law Division, in which it sought a determination as to its legal liability under the terms of an aircraft liability insurance policy issued by it to insure Raritan River Garage
Company, trade name for Louis LaBruzzo, owner of the private airplane covered by the policy. Plaintiff joined as parties defendant Santa LaBruzzo, administratrix of the estate of Louis LaBruzzo, and Charlotte R. Bifulco, general administratrix and administratrix ad prosequendum of the Estates of William A. Bradley, Jr., deceased, and George Bradley, deceased, because of suits pending by them to recover damages for which the plaintiff might ultimately be liable on the aforesaid insurance policy.
LaBruzzo and the Bradleys lost their lives and LaBruzzo's plane was destroyed during the course of a flight on October 31, 1959, when the plane crashed into a mountain at or near Greenville, New York. LaBruzzo, who held only a student pilot certificate, was then and there operating the plane and the Bradleys were aboard for the ride.
Plaintiff's motion for a summary judgment of nonliability on the policy was denied, and defendants' motion for summary judgment that the policy covered this accident was granted. Plaintiff appeals.
The main issue on this appeal is whether the policy issued by the plaintiff covered the loss of or damage to LaBruzzo's aircraft while in flight, and the loss of the lives of the two Bradleys. Coverage under the policy depends upon the meaning of the word "passengers" in the following exclusionary provision of the policy, upon which plaintiff relies essentially to support its contention of noncoverage:
"This policy applies when the aircraft is in flight only while being operated by the following pilot(s): Louis LaBruzzo, student pilot (except while carrying passengers under a student permit) or any pilot holding a valid and effective private or commercial pilot's certificate and seaplane rating if the aircraft insured is a seaplane." (Emphasis ours)
As noted above, the insured aircraft was in flight and was being operated by Louis LaBruzzo, a student pilot holding only a certificate as such, and there was no other pilot aboard at the time of the fatal crash. Was LaBruzzo carrying
"passengers" so as to make coverage under the policy inapplicable?
Plaintiff contends that the word "passengers" in the foregoing exclusionary provision was intended by the plaintiff and the insured to mean all occupants of the plane other than the pilot. Defendants maintain that, in the absence of any definition of the word "passengers" in the policy, the trial court properly interpreted the word in its restricted legal meaning as referable only to fare-paying passengers and not to be applicable to mere "guest occupants." While the plaintiff's attorney refused to concede on oral argument that the Bradleys were "guest occupants" and not fare-paying passengers, the interpretation of the policy by the trial court is based upon the assumption that the Bradleys were merely "guest occupants," and our review of the correctness of that determination is necessarily based upon the same assumption. It is conceded that if the Bradleys were fare-paying passengers, the exclusionary provision of the policy noted above would obviously bar coverage.
The word "passenger" has various meanings, depending upon the circumstances under which and the context in which the word is used. Sometimes it is construed in a restricted legal sense as referring to "one who is being carried by another for hire." Restatement, Torts , § 490, comment (a). On other occasions, the word is interpreted as meaning any occupant of a vehicle other than the person operating it. As the court stated in Vogrin v. Hedstrom , 220 F.2d , 863, 865, 866 (8 Cir. 1955):
"Certainly the term 'passenger' does not universally connote that the person is designated as a compensating passenger. Whatever its technical legal significance may be, in common parlance it means an occupant of a motor vehicle other than the person operating it and describes a physical status rather than a technical legal status, * * *."
As aptly noted in Emerson v. Carolina Cas. Ins. Co. , 206 F.2d , 13, 16 (8 Cir. 1953), "it would ...